Bowers v. State

• Decision Date: 13 July 1978
• Docket Number: No. 150,150
• Citation: 283 Md. 115,389 A.2d 341
• Parties: Hobart BOWERS v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 115

283 Md. 115

389 A.2d 341

Hobart BOWERS v. STATE of Maryland.

No. 150.

Court of Appeals of Maryland.

July 13, 1978.

Martha G. Villmoare, Asst. Public Defender, Baltimore (Alan H. Murrell, Public Defender, Baltimore, on the brief), for appellant.

Stephen B. Caplis, Asst. Atty. Gen., Baltimore (Francis B. Burch, Atty. Gen., and Clarence W. Sharp, Asst. Atty. Gen., Baltimore, on the brief), for appellee.

Argued before MURPHY, C. J., and SMITH, DIGGES, LEVINE, ELDRIDGE, ORTH and COLE, JJ.

LEVINE, Judge.

We granted certiorari here to decide whether the State child abuse law, Maryland Code (1957, 1976 Repl. Vol.) Art. 27, § 35A, is so vague and indefinite as to violate the Due Process Clause of the Fourteenth Amendment to the Federal Constitution. After appellant's constitutional attack on the statute failed in the Circuit Court for Anne Arundel County (Evans, J.) and he was convicted by a jury of committing child abuse against his stepdaughter, he took an appeal to the Court of Special Appeals, which upheld the decision of the trial court in Bowers v. State, 38 Md.App. 21, 379 A.2d 748 (1977). ¹ We now affirm.

The relevant facts are both undisputed and uncomplicated. Appellant began living with Betty Bowers in 1964. They were joined two years later by five-year old Patricia Evans, Betty's daughter by another man. One month before the trial of this case, which occurred in August 1976, appellant and Betty were married.

On February 25, 1976, Patricia, then 15 years of age, "played hookey" from school for part of the day. When she returned home that evening, Betty, having learned of her daughter's absence from school, struck Patricia on the legs several times with a belt. ² According to Patricia, appellant then took the belt and began to beat her with it, striking her 15 to 20 times on the back, neck, arm and legs. She attended school on the next day, but a day later her vice-principal, during a conference concerning her truancy, observed her bruises and notified the Department of Social Services. An investigating officer found bruises on Patricia's neck, arm and back which he photographed at the police station. She was then taken to a hospital where she was given a tranquilizer and released.

Appellant, who had previously represented himself to a social worker as Betty's husband, testified that he had accepted Patricia as his own child, that he had provided for her and had been strict with her. He further testified that he had experienced "a lot of trouble" with Patricia in 1973 and that she had run away following another incident in which he had whipped her with a belt.

I

Although the tragic phenomena of child abuse and neglect have plagued our society since its inception, Children's Bureau, U.S. Dep't of Department of Health, Education & Welfare The Abused Child 1 (1963), it was not until the late 1950's that research physicians throughout the country began to uncover evidence showing that the incidence and violence of parental attacks on children were far greater than anyone had ever anticipated. D. Gil, Violence Against Children 18 Et seq. (1973). Spurred on by these shocking revelations and by a major clinical study prepared by a team of pediatricians in 1962, See Kempe, Silverman, Steele, Droegenmueller & Silver, The Battered Child Syndrome, 181 J.Am.Med.A. 17 (1962), legislatures in all fifty states rapidly adopted laws aimed directly at reducing the prevalence of physical mistreatment of children. Paulsen, Parker & Adelman, Child Abuse Reporting Laws Some Legislative History, 34 Geo.Wash.L.Rev. 482 (1966). On the history of child abuse generally, see Fontana, Somewhere a Child is Crying 4 Et seq. (1976).

Maryland's initial attempt at achieving a modicum of reform in this troubled area came in 1963 with the enactment of Chapter 743 of the Laws of 1963, then codified as § 11A of Article 27. That pioneering statute, entitled "Assault on Child," made it a felony for any "parent . . . or other person" having "permanent or temporary care or custody of a minor child" to maliciously beat, strike or mistreat the child to such a degree "as to require medical treatment." ³ Seeking to expand the relatively narrow scope of criminal liability provided for in earlier legislation, the General Assembly amended the statute in 1973 to provide for the punishment of any parent or custodian who "causes abuse" to a child under the age of eighteen years. Laws of 1973, ch. 835; Art. 27, § 35A(a); See State v. Fabritz, 276 Md. 416, 423-24, 348 A.2d 275 (1975), Cert. denied, 425 U.S. 942, 96 S.Ct. 1680, 48 L.Ed.2d 185 (1976). The term "abuse" was defined to be any:

"physical injury or injuries sustained by a child as a result of Cruel or inhumane treatment or as a result of malicious act or acts by any parent, adoptive parent or other person who has the permanent or Temporary care or custody or responsibility for supervision of a minor child." Art. 27, § 35A(b)(7)(A) (emphasis added). ⁴

For a discussion of the background of Maryland child abuse legislation, see Note, Maryland Laws on Child Abuse History, Analysis and Reform, 6 U.Balt.L.Rev. 113, 116-18 (1976).

The sole ground asserted by appellant in this Court for reversal of his conviction is that the portion of the statute defining the felony of child abuse is so uncertain and indefinite as to deprive him of his right to due process of law under the Fourteenth Amendment. Appellant argues that the statute is unconstitutionally vague in two respects. First, he maintains that the use of the phrase "cruel or inhumane treatment" in Art. 27, § 35A(b)(7) (A) effectively reduces the language of the statute to such a state of uncertainty "that it fails to convey a definite warning as to the proscribed conduct measured by common understanding and practices." Secondly, he claims that the failure of the statute to include any definition of the phrase "temporary care or custody" creates a further ambiguity of constitutional dimension, since neither appellant nor others similarly situated would have had any way of knowing whether they fell within the class of persons subject to prosecution under the law. In our opinion, both of these contentions lack merit.

II

From a long line of Supreme Court decisions, certain basic and universally accepted principles have emerged concerning application of the void-for-vagueness doctrine. ⁵ The cardinal requirement is that a penal statute "be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties." Connally v. General Const. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926). "(A) statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law." Id. The Fifth and Fourteenth Amendments guarantee that "(n)o one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids." Lanzetta v. New Jersey, 306 U.S. 451, 453, 59 S.Ct. 618, 619, 83 L.Ed. 888 (1939). Accord, Hynes v. Mayor of Oradell, 425 U.S. 610, 620, 96 S.Ct. 1755, 48 L.Ed.2d 243 (1976); United States v. Mazurie, 419 U.S. 544, 553, 95 S.Ct. 710, 42 L.Ed.2d 706 (1975); Smith v. Goguen, 415 U.S. 566, 572 n.8, 94 S.Ct. 1242, 39 L.Ed.2d 605 (1974); Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972); Bouie v. City of Columbia, 378 U.S. 347, 350-51, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964); United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 98 L.Ed. 989 (1954); Winters v. New York, 333 U.S. 507, 515-16, 68 S.Ct. 665, 92 L.Ed. 840 (1948). See generally Note, The Void-For-Vagueness Doctrine in the Supreme Court, 109 U.Pa.L.Rev. 67 (1960).

In assessing the constitutionality of a statute assailed as overly uncertain either in respect of the acts it purports to prohibit or the persons to whom it applies, courts typically consider two basic criteria. The first of these may be described as the fair notice principle and is grounded on the assumption that one should be free to choose between lawful and unlawful conduct. Due process commands that persons of ordinary intelligence and experience be afforded a reasonable opportunity to know what is prohibited, so that they may govern their behavior accordingly. This notion of fair warning does not presume that criminals frequently consult the statute books prior to embarking on an illicit course of action. Rather, as Mr. Justice Holmes explained in McBoyle v. United States, 283 U.S. 25, 27, 51 S.Ct. 340, 341, 75 L.Ed. 816 (1931):

"Although it is not likely that a criminal will carefully consider the text of the law before he murders or steals, it is reasonable that a fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed. To make the warning fair, so far as possible the line should be clear."

Since " 'vague laws may trap the innocent by not providing fair warning,' " Hynes v. Mayor of Oradell, 425 U.S. at 622, 96 S.Ct. 1755, at 1761, Grayned v. City of Rockford, 408 U.S. at 108, 92 S.Ct. 2294, no one should be subject to criminal responsibility for conduct which he could not reasonably understand to be prohibited. Rose v. Locke, 423 U.S. 48, 49, 96 S.Ct. 243, 46 L.Ed.2d 185 (1975); United States v. Harriss, 347 U.S. at 617, 74 S.Ct. 808; Governor v. Exxon Corp., 279 Md. 410, 454, 370 A.2d 1102, 372 A.2d 237 (1977), Aff'd, --- U.S. ----, 98 S.Ct. 2207, 57 L.Ed.2d 91 (1978).

A statute may also be stricken for vagueness if it fails to provide legally fixed standards and adequate guidelines for police, judicial officers, triers of fact and others whose obligation it is to enforce, apply and administer the penal laws.

"A vague law impermissibly...